Institutional Recognition and Accommodation of Ethnic Diversity

590 Pages·2008·1.83 MB·English

Institutional Recognition and Accommodation of
Ethnic Diversity: Federalism in South Africa and

Ethiopia

By

YONATAN TESFAYE FESSHA

LL.B Hons (Addis Ababa); LL.M (Pretoria) Dip. (Fribourg)

A thesis submitted in fulfillment of the requirements for the degree of Doctor of
Philosophy (Law) in the Faculty of Law, University of the Western Cape

Promoter:

PROFESSOR NICO STEYTLER

FACULTY OF LAW

UNIVERSITY OF THE WESTERN CAPE

9 June 2008
Declaration

I declare that ‘Institutional recognition and accommodation of ethnic

diversity: Federalism in South Africa and Ethiopia’ is my work and has not

been submitted for any degree or examination in any other university or
academic institution. All sources and materials used are duly acknowledged and
are properly referenced.

Yonatan Tesfaye Fessha Date

________________ 9 June 2008

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Acknowledgment

The preparation of this thesis would not have been possible without the help of a

number of people. The most important contribution came from my supervisor,

Professor Nico Steytler, who tirelessly read the drafts and provided insightful
comments. The thesis benefited immen sely from his perceptive comments.

This work has also benefited greatly from the assistance of Reuben Baatjies and
Annette Christmas who read and commented on various parts of the draft. I am
also grateful for the insightful comments I received from Prof Jaap De Visser in
the early stages of this work. I wish also to thank Christopher Mbazira and
Woldekidan Kifle for all their work in the editing of parts of the thesis.

My sincere gratitude goes to the Community Law Centre and especially
Professor Nico Steytler for providing me the opportunity to be part of the
Community Law Centre. I would also like to thank members of the Local
Government Project, with whom I have worked for more than three years.
Professor Jaap de Visser, Reuben Baatjies, Valma Hendricks and Annette
Christmas have done a lot to ensure that my stay in the project went smoothly.
For that, I am deeply grateful. It is also while working in this project that I met
Coel Kirkby, with whom I have shared nice times not to mention a rich
intellectual experience.

I am also grateful to the staff of the Community Law Centre for providing
supportive environment during my stay at the University of the Western Cape.
Two individuals deserve special mention: Trudy Fortuin and Jill Claassen. For
making me feel at home away from home and their constant support, I am
grateful to Trudy Fortuin and Jill Claassen. Trudy never hesitated in assisting
wherever she could. I offer thanks to Jill Claassen for her unfailing support and
encouragement. Jill is the best research assistant that anyone can ask for.

I would also like to thank Dr. Addisu Gebreigzabhier, who provided me free
access to valuable collections on federalism and ethnicity at his office in the
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Ministry of Federal Affairs in Ethiopia. Similar thanks goes to Dr. Assefa Fiseha
who avails important materials in the last leg of my research. I would also like to

thank the Institute of Federalism, University of Fribourg, for providing me, in
the summer of 2007, an opportunity  to test ideas at the summer school. The
experience has deepened my interest in the ever exciting area of ‘federalism and

the multi-ethnic challenge’. Thanks also to all funders to the Community Law

Centre, including Ford Foundation, for providing me financial assistance that
enabled me to complete this thesis. I have also enjoyed and benefited a lot from
the often lengthy but always interesting telephonic conversations I had with my
friend Solomon Ayele in the course of this research.

If I have successfully weathered the challenges of producing this thesis, it would
largely be because the unflinching support and encouragement that I was blessed
to receive from Wongelawit. I cannot imagine how I would have gone through
this project if I did not have the benefit of being accompanied by the most kind,
loving and reliable individual that I have ever come to know. She made it all
much easier. I want to say thank you for putting up with someone who spent
long hours in front of his computer. I am also grateful to Wongelawit for
constantly inspiring me to be a better person. It is to her that my gratitude is
principally due.

My acknowledgement would not be complete without mentioning my sister K
who has constantly been there for me through out challenging times. I know the
joy that the completion of this doctoral study would bring to your face. The mere
knowledge of that warms my heart.

To my family and all my friends, whom I could not mention due to the constraint
of space, I am truly grateful.
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Table of content

Chapter One: Introduction 1
1. Background to the study   1
2. Statement of problem 3

3. Scope of the study 4
4. Significance of the study 6

5. Methodology 7
6. Limitations of the study 7
7. Structure 8
8. Argument 10
8.1. Recognition as institutional principle 10
8.2. The institutional principles of self rule and shared rule 12
8.2.1. Self rule 12
8.2.2. Shared rule 13
8.3. The federal response in a form of a ‘purpose continuum’ 13
8.4. The limits of federalism 15

Chapter Two: Towards the recognition of ethnic diversity 16
1. Introduction 16
2. Ethnic group and ethnicity 17
2.1. Ethnic group defined 18
2.2. The nature of ethnicity 22
2.2.1. The primordialist school 23
2.2.2. The instrumentalist school 24
2.2.3. The synthesis 25
3. Nation 31
3.1. Distinguishing a nation from an ethnic group 38
3.2. Nation and state distinguished 40
4. The illusion of nation-state building 43
5. Political divorce as a response to the challenges of ethnic diversity 47
6. The individual rights approach 50
6.1. The individual rights approach and the multi-ethnic
challenge 50
6.2. The limits of the individual rights approach 56
6.3. Concluding remarks 61
7. The principle of recognition 61
8. Conclusion 69

Chapter Three: Federalism as institutional design to recognise and
accommodate ethnic diversity
1. Introduction 71
2. Federalism and federation 72
3. Federation as a territorial arrangement 78
4. Federalism: An ideology or a pragmatic tool? 80
5. Accommodating ethnic diversity through federalism 82
5.1 Federalism as a promising alternative to manage
ethnic diversity 84
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5.2 Federalism as a poor device to manage ethnic diversity 86
5.3 Assessment 88
5.4 Concluding remarks 91

6. Institutional arrangements for recognising and accommodating ethnic
diversity 93

6.1 Recognition 94
6.1.1. Preamble 98

6.1.2. Symbolic codes 100
6.1.2.1 Names a nd terminologies 100
6.1.2.2 Flag 101
6.1.2.3 The practicality of adopting an all-inclusive
state symbols 102
6.1.3. Language policy 103
6.1.3.1 The personal model 104
6.1.3.2 The territorial model 106
6.1.3.3 Remark 108
6.2. Self rule 109
6.2.1. Territorial autonomy 110
6.2.1.1 Territorial or administrative federalism 110
6.2.1.2 Ethnic model of federalism 112
6.2.1.3 The dangers of providing a mother state to
each large ethnic group 113
6.2.2. Division of powers and competencies 117
6.2.2.1 Competencies allocated 117
6.2.2.2 Symmetry and asymmetry 120
6.2.2.3 Concluding remarks 124
6.2.3. Fiscal autonomy 125
6.3. Shared rule 127
6.3.1. Lower house 129
6.3.2. Second chamber 133
6.3.2.1 Composition of second chamber 134
6.3.2.2 Powers of second chamber 137
6.3.2.3 Concluding remarks 138
6.3.3. Representation in the national executive 138
6.3.4. Fiscal equalisation as ‘fiscal glue of national unity’ 141
6.4. Federalism and the challenges of dispersed ethnic groups
and intra-substate minorities 144
6.4.1. The plight of intra-substate minorities 145
6.4.2. Bill of rights as a device to protect minorities 147
6.4.3. Non-territorial autonomy 149
6.4.4 Representation of minorities 150
6.4.5 Concluding remarks 151
7. Conclusion 151

Chapter Four: Ethnicity in South Africa’s political and constitutional
development
1. Introduction 153
2. The ascendancy of Afrikaner ethnic nationalism 156
3. The Black homelands: ‘Coupling ethnic differences and territory’ 160
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3.1. The homeland policy: An exercise of self-determination? 163
3.2. Assessment 164
3.3. The homeland policy and ethnicity 169

3.4. Assessment 171
4. Towards the Interim Constitution: The emergence of

politicised ethnicity? 173
4.1. Ethnic conflicts? 174

4.2. Ethnicity in the constitutional options for a new South
Africa   177
4.3. Concluding remarks 182
5. Accommodating ethnic diversity in the Interim Constitution 183
5.1. The status and use of language 184
5.1.1. Language for the purpose of government 184
5.1.2. Language in education policy 187
5.2. Self rule 189
5.2.1. Powers and functions 189
5.2.1.1 Provincial constitution making 189
5.2.1.2 Provincial legislative autonomy 191
5.2.2. Volkstaat 195
5.3. Shared rule 197
5.3.1. National Assembly 197
5.3.2. The Senate 197
5.3.3. The Government of National Unity 199
5.4. ‘Fundamental Rights’ 200
5.5. Constitutional Principles 200
5.6. Assessment 202
6. The political saliency of ethnicity in post-apartheid South Africa 203
6.1. Contesting views on the political relevance of ethnicity 204
6.2. Assessment 207
7. Conclusion 211

Chapter Five: Institutional Recognition and Accommodation of Ethnic
Diversity in South Africa 213
1. Introduction 213
1.1. Structure of government in a nutshell 214
1.1.1. National government 215
1.1.2. Provincial governments 216
1.1.3. Local government 216
2. Recognition of ethnic diversity 217
2.1. Preamble to the Constitution 217
2.2. Symbolic codes 220
4.2.1. Formal description of the state 220
4.2.2. National anthem 220
4.2.3. Flag 221
4.2.4. Coat of arms 222
4.2.5. Assessment 223
2.3. Language 225
2.3.1. The language clause of the Constitution 225
2.3.2. The use of language for the purposes of government 228
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2.3.3. The Pan South African Language Board 229
2.3.4. “Impractical egalitarianism”? 229
2.3.5. Assessment 230

2.4. Recognition of traditional law and traditional leadership 233
2.4.1. Constitutional recognition of traditional leadership 233

2.4.2. The Traditional Leadership and Governance
Framework Act 235

2.4.3. Houses of traditional leaders 236
2.4.4. Assessment   237
2.5. Concluding remarks on recognition 239
3. Self rule 241
3.1. Geographical configuration of the state 241
3.1.1. The process of provincial demarcation 241
3.1.2. The impact of provincial demarcation on ethnic
diversity 244
3.1.3. Assessment 245
3.1.4. Self-determination 249
3.2. Powers and competences of provincial governments 253
3.2.1. Provincial constitution 253
3.2.2. Provincial law making power 254
3.2.3. Assessment 257
3.3. Financial autonomy 259
3.4. Concluding remarks on self rule 263
4. Shared rule 264
4.1. The National Assembly and the electoral system 264
4.1.1. Assessment 266
4.2. The National Council of Provinces
(NCOP) 272
4.2.1. Composition of the NCOP 272
4.2.2. Functions and powers of the NCOP 273
4.2.3. Assessment 275
4.3. Co-operative government and intergovernmental relations 277
4.3.1. The principles of cooperative government 278
4.3.2. Assessment 281
4.4. Representation in the national executive 283
4.4.1. Representation through political practice 284
4.4.2. Assessment 287
4.5. Concluding remarks on shared rule 291
5. The challenges of accommodating dispersed ethnic groups 292
5.1. The Bill of Rights and the multi-ethnic challenge 293
5.1.1. The right to equality and non-discrimination 293
5.1.2. Associational rights 294
5.1.3. Language in education 297
5.1.4. Limitation of rights 301
5.1.5. The enforcement of the Bill of Rights 302
5.1.6. Assessment 303
5.2. The Commission for the Promotion and Protection of the
Rights of Cultural, Religious and Linguistic Communities:
A commission for dispersed and intra-provincial
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minorities? 304
5.2.1. The normative framework 306
5.2.2. Functions of the Commission 307

5.2.3. Cultural councils 309
5.2.3.1 Subjects of cultural councils 310

5.2.3.2 Cultural council to all communities or to
specific minorities 311

5.2.3.3 One or many cultural councils 313
5.2.4. Assessment   314
6. Conclusion 316

Chapter Six: Ethnicity in Ethiopia’s political and constitutional
development 322
1. Introduction 322
2. Ethnicity in historic Ethiopia 324
2.1. Historic Ethiopia 324
2.2. Assessment 332
3. Ethnicity in the making of the present day Ethiopia 335
3.1. The imperial expansion and the two facets of domination 338
3.2. Contesting interpretations of the Menelik conquest 341
3.3. Assessment 342
4. The HaileSelassie regime and the multi-ethnic challenge 344
4.1. The armed struggle in Eritrea 348
4.2. The student movement and the question of nationalities 352
4.3. Assessment 354
5. The 1974 revolution, the Derg and ethnic mobilisation 356
5.1. The Derg and ethnicity 356
5.2. The 1987 Constitution and the question of nationalities 360
5.3. Assessment 362
6. The Transitional Charter and ethnicity 365
6.1. The Charter as a response to the multi-ethnic challenge 367
6.1.1. Self rule 367
6.1.2. Shared rule 371
6.2. Assessment 372
7. The political saliency of ethnicity in Ethiopia 374
7.1 Divergent views on the role and place of ethnicity 374
7.2 Assessment 376
8. Conclusion 380

Chapter Seven: Marrying federalism with ethnicity: The case of
Ethiopia 382
1. Introduction 382
1.1. Introducing the state structure 383
1.1.1. Federal Government 383
1.1.2. State governments 385
1.2. Clearing terminological ambiguity: Nation, nationality and
people 386
2. Recognition of ethnic diversity 391
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2.1 Preamble 391
2.2 Symbolic codes 396
2.3 Language 398

2.3.1. The debate on language policy 400
2.3.2. Assessment 402

2.3.3. Language in education policy 405
2.3.4. Assessment 410

3. Self rule 413
3.1. Territorial autonomy   413
3.1.1. Ethnically defined regional states 414
3.1.2. The dilemma of ethnic-based territorial units 417
3.1.3. Assessment 418
3.1.3.1 Promotes the self-management of
ethnic communities 418
3.1.3.2 The dangers of providing mother state to
each large ethnic group 421
3.1.4. Secession 425
3.1.4.1 The procedure for secession 426
3.1.4.2 Assessment 429
3.2. Powers and functions 432
3.2.1. The ‘long list’ of federal competencies 433
3.2.2. Assessment 433
3.3. Financial autonomy 436
3.3.1. Division of revenue 437
3.3.2. Intergovernmental transfers 440
3.3.3. Assessment 443
4. Shared rule 444
4.1. Representation in the House of Peoples Representatives
(HPR) 444
4.1.1. The electoral system for the HPR 445
4.1.2. Special representation for minority ethnic groups 445
4.1.3. The role of the HPR and ethnic-based parties 446
4.1.4. Assessment 447
4.2. The House of Federation (HF) 451
4.2.1. Composition of the HF 451
4.2.1.1 Equitable representation? 455
4.2.1.2 Representation of intra-substate minorities
and ethnic migrants 456
4.2.2. Powers and function of the HF 458
4.2.3. Assessment 461
4.3 Representation in the Federal executive 462
4.3.1. The constitutional practice of representation 463
4.3.2. Assessment 465
5. Intra-state minorities and ethnic migrants 469
5.1. The use of language 470
5.2. Territorial self rule for intra-state minorities 473
5.3. Ethnic migrants and the protection of individual rights 475
5.4. Representation in state structures 480
5.5. Assessment 481
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